Judge: Daniel M. Crowley, Case: 21STCV07072, Date: 2023-02-08 Tentative Ruling
Case Number: 21STCV07072 Hearing Date: February 8, 2023 Dept: 28
Defendants Nareg Ebrahimian and Edik Ebrahimian’s Motion to Vacate Entry of Default
Having considered the moving, opposing and reply papers, the Court rules as follows.
BACKGROUND
On February 23, 2021, Plaintiff Anna Bratti (“Plaintiff”) filed this action against Defendants Nareg Ebrahamian (“Nareg”) and Edik Ebrahamian (“Edik”) for motor vehicle negligence and general negligence.
On August 5, 2022, the clerk entered default against Defendants. On November 30, 2022., the Court entered default against Defendants.
On January 5, 2023, Defendants, under the correct spelling of Ebrahimian, filed a Motion to Vacate Default to be heard on February 8, 2023. On January 24, 2023, Plaintiff filed an opposition. On January 31, 2023, Defendants filed a reply.
There is no current trial date.
PARTY’S REQUESTS
Defendant requests the Court set aside entry of default and default judgment on the basis that Defendant never received notice of the complaint.
LEGAL STANDARD
“Section 473(b) provides for both discretionary and mandatory relief. [Citation.]” (Pagnini v. Union Bank, N.A. (2018) 28 Cal.App.5th 298, 302.) The discretionary provision grants relief based upon a party or legal representative’s mistake, inadvertence, surprise, or neglect. The discretionary provision states in pertinent part:
“The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.”
The mandatory provision states in pertinent part:
“Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect. The court shall, whenever relief is granted based on an attorney’s affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.”
“The purpose of this mandatory relief provision is to alleviate the hardship on parties who lose their day in court due to an inexcusable failure to act by their attorneys. [Citation.]” (Rodriguez v. Brill (2015) 234 Cal.App.4th 715, 723, emphasis added.)
DISCUSSION
Defendants’ application for relief was filed less than six months after entry of default and default judgment, making Defendants’ application timely.
Defendants argue that they were never on notice as to the lawsuit. First, Defendants argue that service was never effective. Plaintiff allegedly served the complaint on both Defendants through Mineh Ebrahimian (“Mineh”). Mineh submitted a declaration stating she was never handed any paperwork and the description provided in the proof of service does not match her features. Additionally, Mineh did not live at the subject address at the time of the alleged service. She also states she would have been at work at the time of the alleged service. Defendants also claim that their insurance provider did run a docket search but found no pending cases because Plaintiff misspelled Defendants’ last name. Defendants also submitted a declaration from Nareg, in which Nareg states he was never served with a statement of damages and that the description provided does not match his own features. The Court finds service was never effectuated and vacates default and default judgment.
CONCLUSION
Defendants Nareg Ebrahimian and Edik Ebrahimian’s Motion to Vacate Entry of Default and Default Judgment is GRANTED. Entry of Default and Default Judgment are vacated.
Moving party is ordered to give notice of this ruling.
The Court sets a hearing on an Order to Show Cause why the matter should not be dismissed for Plaintiff’s failure to file a Proof of Service on April 7, 2023 at 8:30 a.m. in Dept. 28. If Defendants appear by then, the hearing will be a Trial Setting Conference.
Moving Party is ordered to file the proof of service of this ruling with the Court within five days.
The parties are directed to the header of this tentative ruling for further instructions.